brief for the national association of reversionary property owners as amicus curiae in support of...

8/13/2019 Brief for the National Association of Reversionary Property Owners as Amicus Curiae in Support of Petitioners, Mar

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In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

MARVIN M. BRANDT REVOCABLE TRUST, ETAL.,Petitioners,

v.

UNITED STATES,Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF FOR THE NATIONAL ASSOCIATION

OF REVERSIONARY PROPERTY OWNERS AS

AMICUS CURIAEIN SUPPORT OF PETITIONERS

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

CECILIAFEX Counsel of Record

MICHAELAMBERG

Ackerson Kauffman Fex, PC1701 K Street, NW, Suite 1050Washington, DC 20006(202) [email protected]@ackersonlaw.com

Counsel for Amicus Curiae

National Association of

Reversionary Property Owners

NO.12-1173


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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. For one hundred and five years, the United

States issued land patents subject to 1875Act easements without reserving unto itselfany interest in railroad corridors. . . . . . . . . . 5

II. Enacted forty-seven years later for thepurpose of efficiently divesting the UnitedStates of any interests it might still hold inabandoned rights of way, 912 neitherdefined nor altered the terms of the 1875

Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Section 912 did not define, revise, orapply to the 1875 Act. . . . . . . . . . . . . . . . 22

B. Section 912 operated to dispose of federalr e v e r s i o n a r y i n t e r e s t s u p o nabandonment, not warehouse them inperpetuity. . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34


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TABLE OF AUTHORITIES

CASES

Avista Corp. v. Wolfe,549 F.3d 1239 (9th Cir. 2008) . . . . . . . . . . 22, 29, 30

Barney v. Burlington Northern Railroad Company,Inc.,490 N.W.2d 726 (S.D. 1992) . . . . . . . . . . . . . . . 17

Beres v. United States,104 Fed. Cl. 408 (2011) . . . . . . . . . . . . 4, 6, 16, 18

Beres v. United States,64 Fed. Cl. 403 (2005) . . . . . . . 5, 6, 16, 18, 23, 24

Blendu v. United States,75 Fed. Cl. 543 (2007) . . . . . . . . . . . . . . . . . . . . 16

Brown v. Northern Hills Regional RailroadAuthority,

732 N.W.2d 732 (S.D. 2007) . . . . . . . . . . . . . 6, 17

Chicago & Northwest Transportation Co. v. KaloBrick & Tile Co.,450 U.S. 311 (1981) . . . . . . . . . . . . . . . . . . . . . . 29

City of Aberdeen v. Chicago & NorthwestTransportation Co.,602 F. Supp. 589 (D.S.D. 1984) . . . . . . . . . . . . . 25

City of Buckley v. Burlington Northern Railroad

Corp.,723 P.2d 434 (Wash. 1986) . . . . . . . . . . . . . . . . 25


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Clemmer v. Rowan Water, Inc.,No. 0:04 CV 165 HRW, 2006 WL 449266 (E.D.Ky. Feb. 23, 2006) . . . . . . . . . . . . . . . . . . . . . . . 32

Railway Co. v. Alling,99 U.S. 463 (1878) . . . . . . . . . . . . . . . . . . . . . . . . 7

Dowd v. City of Omaha, Douglas County,520 N.W.2d 549 (Neb. Ct. App. 1994) . . . . . . . . 32

Ellamae Phillips Co. v. United States,

99 Fed. Cl. 483 (2011) . . . . . . . . . . . . . . . 6, 16, 18

Forwood v. Delmarva Power & Light Co.,No. CIV. A. 10948, 1998 WL 136572 (Del. Ch.Mar. 16, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Fritsch v. Interstate Commerce Commission,59 F.3d 248 (D.C. Cir. 1995) . . . . . . . . . . . . . . . 31

Great Northern Railway Co. v. United States,315 U.S. 262 (1942) . . . . . . . . . . . . . . . . . . passim

Hash v. United States,403 F.3d 1308 (Fed. Cir. 2005) . . . . . . . . . . . passim

Idaho v. Oregon Short Line Railroad Co.,617 F. Supp. 207 (1985) . . . . . . . . . . . . . . . . . 4, 17

MacDonald v. United States,119 F.2d 821 (9th Cir. 1941) . . . . . . . . . . . . . . . 13

Marlow v. Malone,

734 N.E.2d 195 (Ill. App. Ct. 2000) . . . . . . . . . . 25


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Marshall v. Chicago & NorthwesternTransportation Co.,31 F.3d 1028 (10th Cir. 1994) . . . . . . . . . . . . . . 17

Mauler v. Bayfield County,309 F.3d 997 (7th Cir. 2002) . . . . . . . . . . . . 17, 22

National Association of Reversionary PropertyOwners v. Surface Transportation Board,158 F.3d 135 (D.C. Cir. 1998) . . . . . . . . . . . . . . . 1

Petrus v. Nature Conservancy,957 S.W.2d 688 (Ark. 1997) . . . . . . . . . . . . . . . . 32

Pollnow v. State Department of Natural Resources,276 N.W.2d 738 (Wis. 1979) . . . . . . . . . . . . 31, 32

Preseault v. Interstate Commerce Commission,494 U.S. 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . 1, 3

Rio Grande Western Railway Co. v. Stringham,239 U.S. 44 (1915) . . . . . . . . . . . . . . . . . . . . . 8, 13

Samuel C. Johnson 1988 Trust v. Bayfield County,649 F.3d 799 (7th Cir. 2011) . . . . . . . . . . . passim

Samuel C. Johnson 1988 Trust v. Bayfield County,634 F. Supp. 2d 956 (W.D. Wis. 2009) . . . . . . . 28

Schneider v. United States,No. 8:99-CV-0315, 2008 WL 160921 (D. Neb.Jan. 15, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Smith v. Townsend,148 U.S. 490 (1893) . . . . . . . . . . . . . . . . . . . . . . . 9


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United States v. Brandt,496 Fed. Appx 822 (10th Cir. 2012) . . . . . 2, 3, 17

United States v. Union Pacific Railroad Co.,353 U.S. 112 (1957) . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Union Pacific Railroad Co.,91 U.S. 72 (1875) . . . . . . . . . . . . . . . . . . . . . . . . 14

Vieux v. East Bay Regional Park District,906 F.2d 1330 (9th Cir. 1990) . . . . . . . . . . . . . . 17

West Virginia University Hospitals, Inc. v. Casey,499 U.S. 83 (1991) . . . . . . . . . . . . . . . . . . . . . . . 24

Wyoming v. Andrus,602 F.2d 1379 (10th Cir. 1979) . . . . . . . . . . . . . 25

STATUTES

16 U.S.C. 1248(c) . . . . . . . . . . . . . . . . . . . . . . 25, 26

43 U.S.C. 912 . . . . . . . . . . . . . . . . . . . . . . . . passim

43 U.S.C. 934-939 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Act of February 25, 1909, 35 Stat. 647 . . . . . . . . . . 11

Act of June 26, 1906, 34 Stat. 482 . . . . . . . . . . . . . 11

General Railroad Right-of-Way Act of 1875, ch. 152,18 Stat. 492 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7

National Trails System Act, 16 U.S.C. 1241-51 . 4


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Railroad Right-of-Way Abandonment Act of March8, 1922, ch. 94, 42 Stat. 414 . . . . . . . . . . . . . . . . . 4

The ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 . . . . . . . . . . . . . . . . . . . . . . . . 29

Transportation Act of 1920, ch. 91, 402(18)-(22),41 Stat. 456, 477-478 . . . . . . . . . . . . . . . . . . . . . 29

LEGISLATIVE HISTORY

H.R. Rep. No. 59-4777 (1906) . . . . . . . . . . . . . . . . . 11

H.R. Rep. No. 67-217 (1921) . . . . . . . . . . . . . . . 25, 30

ADMINISTRATIVE AUTHORITIES

12 L.D. 423 (Jan. 13, 1888) . . . . . . . . . . . . . . . . . . . . 8

27 L.D. 663 (Nov. 4, 1898) . . . . . . . . . . . . . . . . . . . . 10

Regulations Concerning Railroad Right of Way

Over the Public Lands, 32 L.D. 481 (Feb. 11,1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

43 C.F.R. 243.2 (1938) . . . . . . . . . . . . . . . . . . . . . 13

43 C.F.R. 2842(a) (1909) . . . . . . . . . . . . . . . . . . . . 12

43 C.F.R. 2842.1(a) (1976) . . . . . . . . . . . . . . . . . . 14

45 Fed. Reg. 44,518 (July 1, 1980) . . . . . . . . . . . . . . 6

49 C.F.R. 1152.1 . . . . . . . . . . . . . . . . . . . . . . . . . 33


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Fremont, Elkhorn & Missouri Valley Railway Co.,19 Pub. Lands Dec. 588 (Dec. 28, 1894) . . . . . . . 9

John W. When,32 Pub. Lands Dec. 33 (Mar. 3, 1903) . . . . . . . . 10

Mary G. Arnett,20 Pub. Lands Dec. 131 (Feb. 23, 1895) . . . . . . . 9

Order 2225 of Secy of Dept of Interior (July 15,1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Pensacola & Louisville R.R. Co.,19 Pub. Lands Dec. 386 (Nov. 30, 1891) . . . . . . . 8

OTHER AUTHORITIES

Brief for the United States, Great NorthernRailway Co. v. United States, No. 149, 1942 WL54245 (Jan. 5, 1942) . . . . . . . . . . . . . . . . . . 13, 16


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INTEREST OF AMICUS CURIAE

1

The National Association of Reversionary PropertyOwners (NARPO) is a Washington State non-profit501(c)(3) educational foundation whose primarypurpose is to educate property owners on the defense oftheir property rights, particularly their ownership ofproperty subject to railroad right-of-way easements.Since its founding in 1989, NARPO has assisted overten thousand property owners and has been involved inlitigation concerning landowners interests in landsubject to active and abandoned railroad right-of-wayeasements.See, e.g.,Preseault v. Interstate CommerceCommn, 494 U.S. 1 (1990) (amicus curiae); Natl Assnof Reversionary Property Owners v. Surface Transp.

Bd., 158 F.3d 135 (D.C. Cir. 1998).

This case is important to NARPO because the TenthCircuit has split from the holdings of the Seventh andFederal Circuits, which (1) unsettles long-establishedproperty interests and clouds the title of manylandowners whose property was (and is) encumberedby a railroad right-of-way easement established under

the General Railroad Right-of-Way Act of 1875, ch. 152,18 Stat. 492 (codified at 43 U.S.C. 934-939) (1875

Act), and (2) will make resolution of title disputesmore costly and time-consuming.

1Pursuant to Supreme Court Rule 37.6, amicus curiaeaffirms thatno counsel for any party authored this brief in whole or in part,

and that no entity or person, aside from amicus curiaeand itscounsel, made any monetary contribution toward the preparation

and submission of this brief. All parties have consented to thefiling of this brief.


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SUMMARY OF THE ARGUMENTFor more than a century after passage of the 1875

Act, the administrative agency responsible forpatenting public lands to private landowners issuedpatents without reserving any interests in the rights ofway granted under the Act. This policy was consistentwith the terms of the Act, the intent of Congress, andthis Courts precedent, including its unequivocal rulingin Great Northern Railway Co. v. United States, 315U.S. 262 (1942): the 1875 Act granted merelyeasements, not limited fees with an implied conditionof reverter.2

Accordingly, affirming the Tenth Circuits decisionin United States v. Brandt, 496 Fed. Appx 822, 824(2012), would reverse the historical disposition of theproperty interests like the ones at issue herelikely inexcess of a million acres.

The result would not merely revest ownership in theUnited States long after it disposed of the lands inquestion. It would correspondingly divest ownership

from thousands of property owners who, forgenerations, have sold their lands under warrantydeeds, unaware of the unstated reversionary rightsonly relatively recently claimed by the United States.

And in abandoned corridors, strips of farm fieldsand backyards located throughout the nation would, inthe stroke of a pen, be transformed back into public

2 NARPO concurs with the analysis and discussion of lawpresented by Petitioners. To avoid repetition, this brief focuses

primarily on the historical disposition of 1875 Act interests and onthe only cogent construction of 43 U.S.C. 912.


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lands. Private owners who have built valuablestructures on these properties, fenced them off, paidproperty taxes on them, and possessed them as theirown for decades would have their title upended.

The question then is whether this Court, theDepartment of the Interior, and the historical recordsfor the last part of the 19th century and most of the20th century all have it wrong. Of course the answer isno.

First, theBrandt decision conflicts with the terms

of the 1875 Act, well-settled law concerning theinterpretation and sanctity of land patents,3and thisCourts precedent on the 1875 Act itself. As a result, if

Brandt is affirmed, such a decision would evisceratetitles that have vested in landowners nationwide. Thisis true for the owners of hundreds of thousands ofacres4of former corridors that have already been fully

3(SeeBr. of Petrs 31, 36-38.)

4All estimates of mileage or acreage in this brief are based on theestimates inPreseault.See494 U.S. at 5 (In 1920, the Nations

railway system reached its peak of 272,000 miles; today [1990]only about 141,000 miles are in use .). Because these are

estimates, we will assume for ease of reference that roughly130,000 miles have been abandoned, although experts predict[ed]that 3,000 miles [would] be abandoned every year through the end

of [last] century.Id. These right-of-way corridors are composed,in large part, of federal grants of land or of rights of way, including

1875 Act rights of way, interspersed with privately-grantedinterests. SeeHash v. United States, No. CV 99324SMHW,

2001 WL 35986188, at *1 & n.1 (D. Idaho Nov. 27, 2001) (1875 Actparcels comprised 60% of the acreage in the corridor, totaling 895


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abandoned. It is equally true for the thousands ofowners of untold acres of land that are beingtransformed into linear parks every year pursuant tothe National Trails System Act.516 U.S.C. 1241-51(Trails Act).

Second, 9126did not define or alter the 1875 Actgrants. Section 912 was enacted almost half a centuryafter the passage of the 1875 Act for the expresspurpose of disposing of any abandoned railroadinterests in which the United States still held title.Further, 912 facilitated, rather than impeded, theefficient disposal of abandoned strips of land.

acres);Idaho v. Or. Short Line R.R. Co., 617 F. Supp. 207, 208 (D.

Idaho 1985) (1875 Act parcels comprised 82% of acreage in thecorridor).

5We focus here on the hundreds of thousands of acres of 1875 Act

tracts that were abandoned in the 1900s. Additionally, thousandsof acres of 1875 Act tracts have been and will be put to recreational

trail use. The Federal Circuit and the Court of Federal Claimshave repeatedly held that the conversion of 1875 Act easementsinto linear parks causes a Fifth Amendment taking for which just

compensation is due. A thorough review of the issue can be foundinBeres v. United States, 104 Fed. Cl. 408, 443-57 (2011) (Beres

II).

6Railroad Right-of-Way Abandonment Act of March 8, 1922, ch.94, 42 Stat. 414 (codified at 43 U.S.C. 912) (Section 912).


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ARGUMENTI. For one hundred and five years, the United

States issued land patents subject to 1875Act easements without reserving unto itselfany interest in railroad corridors.

Ultimately at stake here are approximately 1.5million acres of land,7 roughly half of which wereabandoned in the 1900s. When railroads abandonedthese easements, the burden on fee title wasextinguished and full rights were restored to the land.

Although the United States typically retained certaininterests, such as canals and minerals, when itpatented public lands to private landowners, patentsoften made no mention of 1875 Act interests at all. See

Hash v. United States, 403 F.3d 1308, 1314 (Fed. Cir.2005) (the land patents from the early 1900s listedreservation of certain rights, including rights of way forditches or canals, but none mentioned the 1875 Actinterests);Beres v. United States, 64 Fed. Cl. 403, 413(2005) (Beres I) (noting in an 1892 patent only waterand minerals rights were reserved, but not 1875 Act

interests).

In Petitioners case, the patent expressly retainedcertain interests, but not the 1875 Act corridor, statingmerely the grant was subject to the railroads right ofway. This was the practice of the Department of

7Due to the great magnitude of abandonments of railway corridorsthroughout the 1900s, hundreds of thousands of acres of land,

unburdened by these easements, are vested in landowners. The 1.5million-acre figure is an estimate which includes the acreage of the

140,000 or so miles of corridors that are not abandoned.Seen.4,supra.


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Interior

8

from 1875 to mid-1980. See 45 Fed. Reg.44,518 (July 1, 1980) (rescinding earlier regulationwhich directed that no 1875 Act interests should beretained).

Thus, the United States issued land patents togenerations of landowners across the nation withoutwithholding any implied reversionary interests. See

Hash, 403 F.3d at 1313-18 (1875 Act withheld noreversionary interests nor did land patents);Beres v.United States, 104 Fed. Cl. 408, 443-57 (2011) (Beres

II) (same);Ellamae Phillips Co. v. United States, 99Fed. Cl. 483, 485 (2011) (same);Beres I, 64 Fed. Cl. at418 (same);Brown v. N. Hills Regl R.R. Auth., 732N.W.2d 732, 739-40 (S.D. 2007) (same).

In Great Northern, this Court noted with approvalthe DOIs consistent policy of treating the 1875 Actrights of way as easements and issuing land patentswithout reserving any railroad rights of waywhatsoever. 315 U.S. at 275-76. This Court approved ofthe policy after construing the statute itself andreviewing relevant legislative history, its earlier

decisions concerning analogous acts, and the context inwhich Congress passed the Act.Id.at 271-75.

Three main points emerge from this Courtsanalysis in Great Northern, and from the authorityupon which it relied, which are applicable here: (1) the1875 Act granted merely easements, (2) those

8 Within the Department of the Interior, the Bureau of Land

Management succeeded the General Land Office in administeringthe disposition of public lands, including issuing land patents.

Order 2225 of Secy of Dept of Interior, July 15, 1946. We refer tothe agencies collectively as DOI.


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easements remained on the public lands while still inthe United States possession, and (3) fee title to thelands underlying those easements transferred in landpatents to the private landowners without reservation.Chronicling the parade of authority as it marchesthrough the decades throws the United States errant

view into stark relief:

1875 Act: Sec. 4. That any railroad companydesiring to secure the benefits of this act, shall file with the register of the land office aprofile of its road; and upon approval thereof thereafter all such lands over which such right ofway shall pass shall be disposed of subject tosuch right of way.9

1878 decision from this Court: [W]hen theact was passed, we do not doubt that theintention of Congress was to grant to thecompany a present beneficial easement in theparticularway over which the designated routeslay, capable, however,of enjoyment only whenthe way granted was actually located, and, in

good faith, appropriated for the purposescontemplated by the charter of the company, andthe act of Congress.10

9General Railroad Right-of-Way Act of 1875, 4, ch. 152, 18 Stat.

492 (emphasis added).

10Railway Co. v. Alling, 99 U.S. 463, 475 (1878) (emphases added)(construing an analogous act);see also Great Northern, 315 U.S. at

279 (citing Alling as one of two cases construing materiallyidentical right-of-way statutes and notingAllingwas [f]ar more


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1888 DOI regulation: The act of March 3,1875, is not in the nature of a grant of lands; itdoes not convey an estate in fee, either in theright of way or the grounds selected for depotpurposes. It is a right of use only, the title stillremaining in the United States .All personssettling on public lands to which a railroad rightof way has attached, take the same subject tosuch right of way and must pay for the full areaof the subdivision entered, there being noauthority to make deductions in such cases.11

1891 DOI decision: Again it may be stated asa general proposition, that if an easement isgranted for a particular purpose, when thatpurpose ceases to exist, there is an end of theeasement . It is not the fee but the right to usethe public lands for railroad purposes which wasgranted, and, in my opinion, an easement onlywas intended to pass to the railroad company.12

1893 decision from this Court: Doubtlesswhoever obtained title from the government to

any quarter section of land through which ranthis right of way would acquire a fee to thewhole tract subject to the easement of the

persuasive than the later Supreme Court cases, Rio GrandeWestern Railway Co. v. Stringham, 239 U.S. 44 (1915) and thedecisions that followedStringham).

1112 L.D. 423, 428 (Jan. 13, 1888) (emphasis added).

12Pensacola & Louisville R.R. Co., 19 Pub. Lands Dec. 386, 387-88

(Nov. 30, 1891) (discussing a materially similar railroad right ofway grant in special legislation of June 8, 1872.)


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company; and if ever the use of that right of waywas abandoned by the railroad company theeasement would cease, and the full title to thatright of way would vest in the patentee of theland.13

1894 DOI decision: That the right of waygranted by the act in question is a mereeasement can not be questioned, for the fourthsection provides that thereafter all such lands,over which such right of way shall pass, shall bedisposed of, subject to such right of way.14

1895 DOI decision: [C]learly the estategranted by said act is an easement and notthe land. Also explaining that no mention orreservation of the right of way in a land patentwas necessary because the 1875 Act preservedwhatever rights the railroad possessed to therailroad: The insertion of the right of wayclause would answer no purpose except toembarrass the settler, and leaving it out doesnot affect the rights of any railroad company

under said act.15

13Smith v. Townsend, 148 U.S. 490, 499 (1893) (emphases added)(construing an analogous act);see Great Northern, 315 U.S. at 279(citingSmithas the second [f]ar more persuasive case to construe

the 1875 Act).

14Fremont, Elkhorn & Mo. Valley Ry. Co., 19 Pub. Lands Dec. 588,590 (Dec. 28, 1894).

15Mary G. Arnett, 20 Pub. Lands Dec. 131, 132-34 (Feb. 23, 1895)


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1898 DOI regulation: The grant made by thisact does not convey an estate in fee in the landsused for right of way or station grounds. Thegrant is merely a right of use for the necessaryand legitimate purposes of the roads, the feeremaining in the United States. All personsentering the public lands, to part of which aright of way has attached, take the same subjectto such right of way, the latter being computedas a part of the area of the tract entered.16

1903 DOI decision: It is well established thatthe right of way through the public landsgranted to railroads under [the 1875 Act] is inthe nature of a mere easement.17

1904 DOI regulation: The act of March 3,1875, is not in the nature of a grant of lands; butit is a base or qualified fee, giving the possessionand right of use of the land for the purposescontemplated by the law, a reversionary interestremaining in the United States, to be conveyed byit to the person to whom the land may be

patented, whose rights will be subject to those ofthe grantee of the right of way.18

1627 L.D. 663, 664 (Nov. 4, 1898).

17John W. When, 32 Pub. Lands Dec. 33, 34 (Mar. 3, 1903).

18Regulations Concerning Railroad Right of Way Over the PublicLands, 32 L.D. 481, 482-83 (Feb. 11, 1904) (emphasis added). This

Court in Great Northern noted the momentary shift ininterpretation by the Land Department in describing the right as

a base or qualified fee. 315 U.S. at 276. Even so, the regulationplainly stated the reversionary interest was to be conveyed by


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1906 House Committee Report: The right asoriginally conferred [under the 1875 Act] and asproposed to be protected by this bill simply

grants an easement or use for railroad purposes.Under the present law whenever the railroadpasses through a tract of public land the entiretract is patented to the settler or entryman,subject only to this easement.19

1906 and 1909 Acts disposing of forfeited1875 Act interests: Forfeiture of sucheasement shall, without need of furtherassurance or conveyance, inure to the benefit ofany owner or owners of land conveyed by theUnited States prior to such date subject to anysuch grant of right of way or station grounds.20

[the United States] to the person to whom the land may bepatented. 32 L.D. at 482-83.

19SeeGreat Northern, 315 U.S. at 277 (emphases added) (quotingH.R. Rep. No. 59-4777, at 2 (1906), a report on an act that

confirmed a grant under the 1875 Act to certain railroads).

20Act of June 26, 1906, 34 Stat. 482 (Forfeiture Act of 1906)(emphases added); Act of February 25, 1909, 35 Stat. 647 (codified

at 43 U.S.C. 940) (Forfeiture Act of 1909) (emphases added).The United States argues these acts support its argument that theinterests were reversionary or else there would have been no need

for such language. (Br. for U.S. on Pet. for Cert. 14-15.) This isfalse. The statutes were enacted for the purpose of reclaiming to

the United States forfeitedi.e., un-builtlines. The languageconcerning private lands ensured landowners received the

interests to which they were already entitled.See Hash,403 F.3dat 1315 (referring to the governments construction as strained).


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1909 DOI regulation: Nature of [1875 Act]Grant. [A railroad company] obtains only theright to use the land for the purposes for whichit is granted and for no other purpose, and mayhold such possession, if it is necessary to thatuse, as long and only as long as that usecontinues. The Government conveys the feesimple title in the land over which the right ofway is granted to the person to whom patentissues for the legal subdivision on which theright of way is located, and such patentee takes

the fee, subject only to the railroad companysright of use and possession.21

1938 DOI regulation (identical to 1909):22

Nature of [1875 Act] Grant. [A railroadcompany] obtains only the right to use the landfor the purposes for which it is granted and forno other purpose, and may hold such possession,if it is necessary to that use, as long and only aslong as that use continues. The Governmentconveys the fee simple title in the land overwhich the right of way is granted to the personto whom patent issues for the legal subdivisionon which the right of way is located, and such

2143 C.F.R. 2842(a) (1909) (second emphasis added).

22This regulation is post-Stringhamand preceded Great Northern,

yet the DOI maintained a clear policy of divesting any interests theUnited States may have held in 1875 Act rights of way.SeeGreat

Northern, 315 U.S. at 276, 279 (overrulingRio Grande W. Ry. Co.v. Stringham, 239 U.S. 44 (1915)).


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patentee takes the fee, subject only to the railroadcompanys right of use and possession.23

1942 brief of the United States in GreatNorthern: [I]t scarcely can be said that thepurpose of the 1875 grant will be frustrated if itbe construed as conveying an easement ratherthan a fee. This will merely give to the grant thesame meaning which is commonly given to deedsconveying a right of way for railroad purposes.24

1942 in Great Northern: construing the 1875

Act, noting [a]pter words to indicate the intentto convey an easement would be difficult tofind,25 and rejecting the Stringham26 line ofreasoning that the Act granted impliedreversionary interests.27

1957 in Union Pacific: In [Great Northern] wenoted that a great shift in congressional policyoccurred in 1871: that after that period only aneasement for railroad purposes was granted.28

2343 C.F.R. 243.2 (1938) (second emphasis added).

24Br. for the United States, Great N. Ry. Co. v. United States, No.149, 1942 WL 54245, at *14 (Jan. 5, 1942).

25315 U.S. at 271 (quotingMacDonald v. United States, 119 F.2d821, 825 (9th Cir. 1941)).

26239 U.S. 44 (1915).

27Great Northern, 315 U.S. at 276, 279.

28 United States v. Union Pac. R.R. Co., 353 U.S. 112, 119 (1957).


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1976 DOI regulation (identical to 1909 and1938): Nature of [1875 Act] Grant. [A railroadcompany] obtains only the right to use the landfor the purposes for which it is granted and forno other purpose, and may hold such possession,if it is necessary to that use, as long and only aslong as that use continues. The Governmentconveys the fee simple title in the land overwhich the right of way is granted to the personto whom patent issues for the legal subdivisionon which the right of way is located, and such

patentee takes the fee, subject only to the railroadcompanys right of use and possession.29

Given the context in which the United Statescreated the 1875 Act grants, it is unremarkable thatthis Court and the DOI determined they wereeasements for railroad purposes only, with theunderlying fee title passing to patentees. The Act wasthe product of a period. Great Northern, 315 U.S. at273. No longer were the exigencies of the Civil War ordifficulties with Britain the driving force behind right-of-way grants. United States v. Union Pac. R.R. Co., 91U.S. 72, 79-80 (1875) (providing a detailed history ofthe period leading to land and railroad right-of-waygrants). Rather, the period saw a sharp change inpolicy, and Congress resolved that the public landsshould be held for the purpose of securing homesteadsto actual settlers.Great Northern, 315 U.S. at 275.

For these reasons, this Court overruled its earlier

2943 C.F.R. 2842.1(a) (1976) (second emphasis added) (specifyingthe 1875 Act).


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decision inStringhamand its progeny on whichBrandtrelied:

The conclusion [in Stringham] that therailroad was the owner of a limited fee wasbased on cases arising under the land-grant actspassed prior to 1871 and it does not appear thatCongress change of policy after 1871 wasbrought to the Courts attention. That conclusionis inconsistent with the language of the Act, itslegislative history, its early administrativeinterpretation and the construction placed on itby Congress in subsequent legislation. Wetherefore do not regard it as controlling.Statements in [subsequent cases] that the 1875

Act conveyed a limited fee are dicta based on theStringhamcase and entitled to no more weightthan the statements in that case.

Great Northern, 315 U.S. at 279 (citations omitted).

Accordingly, under the overwhelming body offederal authority that controls this analysis, railroads

obtained easements restricted to the right to use theland for the purposes for which they were granted andfor no other purpose; and in subsequent patents issuedto landowners, the United States divested itself of allrights and title to that land.

Only in the last decade or so has the United Statesargued that it silently withheld this particular stickfrom the bundle when conveying fee title to patentees.

And despite having repeatedly litigated (and lost on)


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the issue presented here,

30

the United States has neverproduced any statutes, DOI decisions, regulations,legislative histories, or land patents that canreasonably be interpreted to show the United Statesreserved these interests when issuing patents tosettlers.

Indeed, in 1942, the United States agreed withPetitioners position here, arguing that the 1875 Actgranted easements no different from common laweasements, Br. for the United States, Great Northern,No. 149, 1942 WL 54245, at *14, labeling the

Stringhaminterpretation contrary dictum, id. at *5,and urging that the DOIs construction of the 1875 Actshould not be overturned, id. at *20-21 (citationsomitted) (DOIs interpretation of the 1875 Act,especially when it has long prevailed, is entitled togreat weight, and should not be disregarded oroverturned.).

As a result of everyones understanding of the lawand as a result of the DOIs policies, hundreds ofthousands of acres of former right-of-way lands were

long ago abandoned and recorded as private lands.

But in the mid-1980s, one oddly reasoned districtcourt decision started the ball rolling on the road to theCircuit split that led to this case. InIdaho v. Oregon

Short Line Railroad Co., the U.S. District Court for the

30SeeSamuel C. Johnson 1988 Trust v. Bayfield Cnty., 649 F.3d799, 803-04 (7th Cir. 2011) (S.C. Johnson); Hash, 403 F.3d at

1313-18;Schneider v. United States, No. 8:99-CV-0315, 2008 WL160921, at *2-3 (D. Neb. Jan. 15, 2008);Ellamae Phillips, 99 Fed.

Cl. at 485;Beres II, 104 Fed. Cl. at 443-57;Beres I, 64 Fed. Cl. at418; cf.Blendu v. United States, 75 Fed. Cl. 543 (2007).


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District of Idaho surmised that the 1875 Act grantednot easements grounded in common law, but rather adifferent type of easement with implied reversionaryproperties, which had silently been retained by thefederal government and which the State could put tohighway use. 617 F. Supp. 207, 208-09 (1985). Thecourt relied in part on precedent which had beenexpressly discredited by this Court and on a statuteenacted in 1922, while essentially marginalizing theterms of the 1875 Act and omitting mention of anyrelevant land patent that had transferred public land

to landowners.

A few other courts have followed Oregon Short Linewithout much additional analysis, including the NinthCircuit in Vieux v. East Bay Regional Park District, 906F.2d 1330, 1335-36 (1990) (dictum), and the TenthCircuit in Marshall v. Chicago & NorthwesternTransportation Co., 31 F.3d 1028 (1994), which theTenth Circuit decided it was compelled to follow in

Brandt, 496 Fed. Appx at 824-25.31

More recently, however, the Federal Circuit and the

Seventh Circuit, and the Court of Federal Claims have

31See also Mauler v. Bayfield Cnty., 309 F.3d 997, 1002 (7th Cir.

2002) (dicta);Barney v. Burlington N. R.R. Co., 490 N.W.2d 726(S.D. 1992). However, both the Seventh Circuit and the Supreme

Court of South Dakota have since overruled their earlier decisionson point, concluding that theBeresandHashdecisions were better

reasoned.S.C. Johnson, 649 F.3d at 803; Brown, 732 N.W.2d at738-39.


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eschewed the line of reasoning in Oregon Short Line.

32

These courts instead construed the terms of the 1875Act, reviewed the terms of the land patents issued bythe government to determine whether the UnitedStates had retained any interests in the 1875 Actgrants, and relied on relevant precedent set by thisCourt and the DOI. Each court concluded that therailroads acquired mere easements which inured to thebenefit of landowners when abandoned.

The circumstances in the Seventh Circuit caseexemplify the magnitude of the issue presented here.InSamuel C. Johnson 1988 Trust v. Bayfield County,649 F.3d 799 (7th Cir. 2011) (S.C. Johnson), thecorridor had been abandoned over three decadesearlier.Id. at 806. Thousands of acres in the corridorhad been absorbed into private lands. Nonetheless,Bayfield County claimed the right to turn thenonexistent corridor, which had previously crisscrossedprivate property, into a trail for ATV and snowmobileuse.Id. at 802.

Predicated in part on the theory that portions of the

corridor had been assembled pursuant to the 1875 Act,the county claimed the interest was an impliedreversionary interest held by the United States, which,it alleged, had been preserved in perpetuity since 1980for the countys use pursuant to 912 of the RailroadRight-of-Way Abandonment Act of March 8, 1922.Id.at 802.

32SeeS.C. Johnson, 649 F.3d at 803-04;Hash, 403 F.3d at 1313-18;

Ellamae Phillips, 99 Fed. Cl. at 485;Beres II, 104 Fed. Cl. at 443-57;Beres I, 64 Fed. Cl. at 418.


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If the Seventh Circuit had agreedit didnot33people who had built improvements on the landscrossed by the former railroad, and who had paid taxeson those lands for several decades, suddenly wouldhave become trespassers on federal property if theUnites States construction of 912 were correct.34

The circumstances inS.C. Johnsonare not unique.Since the early 1900s, 130,000 miles of railroad right ofway have been abandoned nationwide,35and while thegovernment did not tabulate the mileage, history showsthat a significant portion of those abandoned corridorswere constructed under the 1875 Act.36

Thus, more than a century since the 1875 Act waspassed and contrary to DOI policy, today a differentdivision of the executive branchthe Department ofJusticeis claiming reversionary rights in abandonedtracts of land comprising hundreds of thousands ofacres. Likely, the newly-minted DOJ policy stems froman aversion to paying just compensation for the takingof private property when converting railroad easementsintended strictly for railroad use into recreational trail

33S.C. Johnson, 649 F.3d at 803-04 (holding that property vestedin the original settler a few weeks before 1875 Act interests could

vest in the railroad, but additionally analyzing the 1875 Act tofurther hold that even if the railroad got there first, the interest

was not reversionary, but rather merely an easement.)

34But see II.B, infra, discussing how 43 U.S.C. 912 operated to

efficiently dispose of any retained federal interests that had beenabandoned by the railroad.

35Seen.4, supra.

36Seeid.


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use.

37

But a 21st-century buyers remorse should haveno influence in the construction of a 19th-centurystatute, nor should it reverse over one hundred years ofthe DOIs implementation of the Act. Moreover, thelions share of the acres at issue were already fullyabandoned beyond the reach of the Trails Act in the1900s.

On much of the land at issue, railroad tracks arelong gone; the grades have been leveled and the fullwidths of the right-of-way footprints are populated byhomes, garages, commercial buildings, and othercountless improvements. In short, the abandonedcorridors are gone both as a legal and historical matter.They are often no longer visible to the naked eye; thelands belong to the landowners.

II. Enacted forty-seven years later for thepurpose of efficiently divesting the UnitedStates of any interests it might still hold inabandoned rights of way, 912 neitherdefined nor altered the terms of the 1875Act.

Section 912 of the Railroad Right-of-WayAbandonment Act of March 8, 1922 concerned strictlyabandoned landsor lands to be abandoned in thefuturein which the United States still held title. Thestatute was designed to dispose efficiently of federalreversionary interests by transferring them into

37Seen.30, supra (citing Federal Circuit and Court of Federal

Claims cases); (see alsoBr. for U.S. on Pet. for Cert. 20 (hazardingthat paying just compensation in the Fifth Amendment takings

cases could impose considerable financial liability on the UnitedStates and the public fisc.)).


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private hands if not dedicated to highway use withinone year of the railroad abandonment.38There are noterms in the statute which operate to create a retainedgovernment interest in 1875 Act rights of way:

[W]henever public lands of the United Stateshave been granted to any railroad companyfor use as a right of way for its railroad , anduse and occupancy of said lands for suchpurposes has ceased or shall hereafter cease,whether by forfeiture or by abandonment by saidrailroad company declared or decreed by a courtof competent jurisdiction or by Act of Congress,then and thereupon all right, title, interest, and

estate of the United States in said landsshall [bevested in the owner of the land traversed by theright of way],except such part thereof as may be

embraced in a public highway legally establishedwithin one year after the date of said decree or

forfeiture or abandonment, and this by virtueof the patent thereto and without the necessityof any other or further conveyance or assuranceof any kind or nature whatsoever .

43 U.S.C. 912 (emphases added).

Contrary to the United States contention (Br. forU.S. on Pet. for Cert. 2-3, 15), (1) the statute neitherdefined nor revised the terms of the 1875 Actitsimply does not apply to 1875 Act easementsand(2) for any retained federal interests to which 912does apply, the statute operated to dispose ofabandoned interests, not impede their disposal or block

38(SeeBr. for U.S. on Pet. for Cert. 17.)


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intended to retain ownership of the servientestate whenever land patents were granted tolands traversed by a previously granted railwayright-of-way. The statute does not support thisposition. The statute requires the United Statesto convey any rights it may have, to the patenteeof the land traversed by the abandoned right-of-way; it does not say what rights the UnitedStates had after the land patent was granted.Indeed, if the United States did have residualrights despite the patented land grant, then the

statute required that the rights be conveyed tothe private owner. Such an interpretation doesnot weaken the position of the landownersherein. Neither section 912 nor 913 purported toestablish governmental ownership of land thathad been granted to homesteaders subject to aright-of-way easement.

403 F.3d at 1317-18.

In Beres I, the Court of Federal Claims alsodisagreed with the governments arguments. As

explained by the court,

[w]hen [ 912] was passed in 1922, Congress,perhaps in response to confusing and misleadinglanguage included in federal court decisions,40

reconfirmed the absence of such a reversionaryinterest in the United States and thecongressional intent, as indicated in the

4064 Fed. Cl. at 419 (It would appear that the language of the

1922 Act was intended to address, clarify, and resolve issuescreated by the imprecise language employed by [Stringham] .).


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legislative history of the 1875 Act, that the landshould be reserved for homesteaders .

64 Fed. Cl. at 428.

Drawing on canons of statutory interpretation,Beres Iconcluded that courts should hesitate to rely onlater legislation (and the legislative history of thatlater legislation) in divining the purpose behind earlierlegislation:

Because legislative goals change over the

years, the risk of using subsequent legislation orsubsequent legislative history to interpret theintent of an earlier congressional enactment isintuitively obvious. Resort to using subsequentcongressional activity of any variety to interpretearlier legislation should be cautiouslyapproached, especially if more direct means areavailable, such as the clear meaning of thestatute. Silence or omission in a statute is anintentional act and can be just as significant asspecific statutory direction.

Id.at 416 (citing W. Va. Univ. Hosps., Inc. v. Casey,499U.S. 83, 101 (1991).

Here, as to the 1875 Act and 912, the governmentis not asking for a construction of a statute, but, ineffect, an enlargement of [both statutes] by the court,so that what was omitted, presumably by inadvertence[under the United States theory], may be includedwithin its scope. To supply omissions transcends the

judicial function. See W. Va. Univ. Hosps., Inc. v.Casey,499 U.S. 83, 101 (1991).


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Regardless, 912 was specifically enacted to disposeof, not retain, unwanted strips of land that wereconsidered of little or no value to the government.H.R. Rep. No. 67-217 at 2 (1921); see also Wyoming v.

Andrus, 602 F.2d 1379, 1384 (10th Cir. 1979); City ofAberdeen v. Chicago & N.W. Transp. Co., 602 F. Supp.589, 592 (D.S.D. 1984);Marlow v. Malone, 734 N.E.2d195, 198-99 (Ill. App. Ct. 2000); City of Buckley v.

Burlington N. R.R. Corp., 723 P.2d 434, 437 (Wash.1986) (By making the reversion automatic, Congressobviated the need for the drafting of additional legal

instruments by the federal government, or for resolvingdisputes over each abandoned right-of-way on a case-by-case basis in the courts.).

This purpose does not support a contrary inferencethat Congress in 1875 intended to retain the interests.It was an afterthought that it might be useful if somerailways could be converted to highways within a yearof abandonment. H.R. Rep. 67-217 (attention of thecommittee was called to the fact that in some cases it might be desirable to establish highways on [linesthat] may be abandoned in the future). Such anafterthought does not alter the fact that in the firstinstance these strips were considered of little or no

value, making disposal of these interests the primaryobjective.See id.

Thus, the 1922 legislationand the modern-daypolicy objective of converting the abandoned rights ofway into recreational trails41cannot support an

41The United States also argues that 16 U.S.C. 1248(c) (1988)

similarly supports construction of the 1875 Act. (Br. for U.S. onPet. for Cert. 15.)


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inference that, in 1875, Congress intended to retain the1875 Act easements.

B. Section 912 operated to dispose offederal reversionary interests uponabandonment, not warehouse them inperpetuity.

BecauseBrandtand the United States rely heavilyon 912 in their analyses, this Court will be calledupon to construe the statute and, in doing so, will likelyaddress the manner in which 912 operated to dispose

of any federal reversionary interests to private owners.This construction will have implications not only forcases similar to this one, but will also have far-reachingconsequences for the owners of private property crossedby tens of thousands of miles of rights of way that wereabandoned before 1988 and which were subject to 912.42 For this reason, we provide an in-depthanalysis of how 912 operated between 1922 and 1988.

The government characterizes 912 as(1) preventing a railroad from relinquish[ing] its

right-of-way until after forfeiture or abandonmentwas declared or decreed by a court of competentjurisdiction or by Act of Congress, and (2) disposing offederal reversionary interests only after that courtdecree or act of Congress had issued. (Br. for U.S. onPet. for Cert. 2-3.) Under the DOJs construction, 912completely blocked the railroad from abandoning theinterests and impeded the divestment and transfer of

42In 1988, Congress, in a separate statute, modified 912 so thatabandoned rights of way were retained, not disposed, by the

government, although the interests could still be embraced in apublic highway. 16 U.S.C. 1248(c).


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federal reversionary interests until the abandonmentwas declared or decreed. This construction,however, is nonsensical. It would conflict with theInterstate Commerce Commissions exclusive andplenary power to fully regulate abandonments (asdelegated by Congress only two years prior), and itwould unravel a century of precedent and practice.

Section 912 sought to dispose of federal intereststhrough a one-year limitations period in which aneligible entity could embrace any federally retainedinterests by dedicating the interest to highway use. Ifno highway was established within that one-yearperiod, then without further conveyance or assuranceof any kind or nature whatsoever, the interests wereto vest in the lands traversed by the right of way. 43U.S.C. 912.

For its first six decades, the statute barely made arippleonly a handful of decisions to address 912 canbe found.S.C. Johnson, 649 F.3d at 806. This, duringan era when approximately 130,000 miles of right ofway were abandoned.43If, as the government contends,

abandoning a railroad right of way at any pointevenbefore 1922required a court decree or an act ofCongress, then the dearth of court decrees or acts ofCongress declaring railroads abandoned under 912means that, legally, almost all of the tens of thousandsof miles of railroad rights of way with federalreversionary interests were never abandoned. Thepractical implications of this Court adopting the

43Seen.4, supra. By 1988, which is the last year 912 operated to

transfer federal reversionary interests into private ownership,approximately 130,000 miles had been abandoned.


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governments interpretation are staggering: railroadscould be liable for unpaid property taxes, upkeep, andinjuries occurring on their heretofore believed-to-beabandoned rights of way.

These factors are important to a correctunderstanding of the historical and practicalapplication of 912, because, whereas historically thereappears to have been no controversy, and title wassimply reabsorbed by the lands formerly traversed bythe easements if not dedicated to highway use withina year, today a split in the courts has emerged on theconstruction of 912. Some courts have held that 912efficiently disposed of federal reversionary interests,while others have held that 912 impeded theirdisposal.

Courts that view 912 as impeding the disposal offederal interests have varied in their analyses. Thedistrict court in S.C. Johnson held that an act ofCongress or a court decree had to issue before therailroad could abandon its interests at all, so that nointerest could revert to the United States to be

disposed of by the statute. Samuel C. Johnson 1988Trust v. Bayfield County, 634 F. Supp. 2d 956, 974(W.D. Wis. 2009) (stating that in this case, ifthe right-of-way is declared to have been abandoned, it wouldrevert to the United States .) (emphasis added)(internal quotation omitted), revd by S.C. Johnson, 649F.3d at 806-07 (rejecting appellees argument, whichwas identical to the district courts holding).

Reasoning somewhat differently, the Ninth Circuithas held that, while the abandonment was not literally

blocked by 912, the one-year limitations period in 912, in which a municipality could embrace the


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interests in a public highway, would not begin to rununtil a court actually decreed the abandonment (orCongress passed a special act).Avista Corp. v. Wolfe,549 F.3d 1239, 1250-51 (9th Cir. 2008). In themeantime, landowners would be vested with inchoatereversionary rights until Congress or a court decreedthe right of way abandoned or forfeited.Id. at 1247.

In practice, neither analysis is workable. The formeranalysis would block abandonment of the segments ofcorridors in which the United States retainedreversionary interests, even if the Interstate CommerceCommission (ICC) had authorized abandonment.44Inother words, 912 would have silently andimpermissibly usurped the ICCs plenary and exclusiverole in regulating the abandonment of railroads (whichCongress had ceded to the ICC only two years earlier),by purportedly transferring that authority to courts.

SeeTransportation Act of 1920, ch. 91, 402(18)-(22),41 Stat. 456, 477-478; Chicago & N. W. Transp. Co. v.

Kalo Brick & Tile Co., 450 U.S. 311, 323 (1981)(Congress granted to the Commission plenaryauthority to regulate, in the interest of interstatecommerce, rail carriers cessations of service on theirlines. And at least as to abandonments, this authorityis exclusive.).

The second unworkable analysis of 912, detailedinAvista, at least lets the abandonment take place andinchoate reversionary interests to vest in landowners.

44The ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat.803, which took effect on January 1, 1996, abolished the ICC and

transferred certain functions and proceedings to the SurfaceTransportation Board.


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549 F.3d at 1247. But it also requires a court decree oract of Congress before the one-year limitations periodto establish a highway starts running. Id. Thisconstruction would mean that a municipality couldwait twenty, forty, sixty, or eighty years or longer, aftera railroad is abandoned and, if no court decree hadbeen issued, the municipality could go to court andrequest a decree; and only when the decree issuedwould the one-year clock to establish a highway beginto run. That is not what the statute says;45further, itsimply makes no sense.

Common to both decisions was the notion that 912mandated prospective-only decrees of abandonment sothat interests could only vest after a court or Congressgot involved.

However, history makes clear that Congress did nothave the above construction in mind when it passed 912 to dispose of unwanted strips of land that oughtin justice be given back to the underlying landowner:Granting such relief in reality gives him only the landcovered by the original patent. H.R. Rep. No. 67-217 at

1-2. While the committee did add terms to preserve thestrip if a highway was desired, id., municipalities (orany other qualified entities) had one year to embracethe interest after abandonment, not countless decades.

45Without acknowledging it was doing so,Avistareworded 912to make its holding work. Rather than giving municipalities one

year from the date of said [court] decree or forfeiture orabandonment, the court held that 912 provided one year from

the date of said decree offorfeiture or abandonment. Compare549 F.3d at 1243, with549 F.3d at 1247 (emphases added).


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The Seventh Circuit reversed the district court andfoundAvista unpersuasive.S.C. Johnson, 649 F.3d at807. The court found that several factors support theconclusion that the statute did not require a courtdecree of abandonment before the interests vested inthe neighboring landowners.

First, history shows that 912 did not requirecourts to issue prospective declarations ofabandonment if the ICC had authorized abandonmentand the railroad had pulled up its tracks. Once thetracks were gone, out of an abundance of caution,landowners could certainly seek an immediate decreeof abandonment to claim their property. But, thisformality has not been observed in rail abandonments.

Id.at 806. If that formality had been required, withsome 130,000 miles of abandoned rights of way duringthe relevant period, and even if only a small fractionincluded federal reversionary interests, the courtswould have been inundated with requests fordeclaratory relief. Instead, only a handful of cases canbe found.Id.

Second, after-the-fact adjudications to determinewhether and when an abandonment took place onrailroad corridors are and were commonplaceasCongress would have understood in 1922. In otherwords, history is replete with cases in which a courtwill weigh the law and facts and decree that anabandonment took place back in time.E.g.,Fritsch v.

ICC, 59 F.3d 248, 253 (D.C. Cir. 1995) (1995 ruling thatright of way was abandoned in 1993 pursuant to ICCauthority and before trail use was instituted);Pollnow


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v. State Dept of Natural Res., 276 N.W.2d 738, 746(Wis. 1979) (holding abandonment occurred in 1973).46

As explained by the Seventh Circuit, [t]heregulators (the ICCs or STBs) permission to abandon,coupled with the removal of the tracks (abandonmentin fact), was sensibly accepted as adequate proof ofabandonment . A formal declaration was necessaryonly if contrary proof was presented or surpriseclaimed.S.C. Johnson, 649 F.3d at 806 (citingKeife v.

Logan, 75 P.3d 357, 358 (Nev. 2003) (per curiam)(affirming anex post factodecree of abandonment infinding interests had vested under 912)).

Third, this practice would not result in unfairsurprise or arbitrary forfeitures of property rights, ashad been held in Avista, because the ICC process ofabandonmentwhich required notice be given to localgovernmentscoupled with the pulling up of tracks,would give municipalities ample notice of anyabandonment, and they had a one-year statutoryperiod after the tracks were pulled up in which to act.

Id.at 807 (citingAvista, 549 F.3d at 1250).

46See also Clemmer v. Rowan Water, Inc., No. 0:04-CV-165 HRW,2006 WL 449266, at *1 (E.D. Ky. Feb. 23, 2006) (holding right ofway abandoned and interests vested in 1985-86);Petrus v. NatureConservancy, 957 S.W.2d 688, 688-89 (Ark. 1997) (affirmingabandonment in 1985);Forwood v. Delmarva Power & Light Co.,

No. CIV.-A.-10948, 1998 WL 136572, at *5 (Del. Ch. Mar. 16, 1998)(decreeing railroad abandoned in the mid-1970s);Dowd v. City ofOmaha, Douglas Cnty., 520 N.W.2d 549, 553 (Neb. Ct. App. 1994)(approving 1988 finding of abandonment in 1981).


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Fourth, to the extent there would be any concernthat the right of way was not actually abandoned, thecourt was

supported in thinking a prospective judicialdeclaration of abandonment unnecessary not bya literal reading of section 912 (which isntpossible, because decree or forfeiture orabandonment is a garble) but by reflection onhow onerous the process for obtaining regulatoryauthorization to abandon a rail line is, see 49C.F.R. 1152.1 et seq., and how even ifauthorization is obtained the railroad still mustrun the gauntlet of judicial review in order to beallowed to abandon a line. A railroad is hardlylikely to incur the expense of abandonmentproceedings if it doesnt intend to abandon therail line if given permission to do soandpromptly too, as authority to abandon expiresafter a year.

Id. (citations omitted).

Fifth, [w]hen the rare case arises in which there isa dispute over whether a right of way has beenabandoned, a claimant who doubts that it has been cansue; but he cannot just claim that the absence of aformal prospective declaration in a judicial opinion or

Act of Congress means that the right of way never wasabandoned.Id.at 808.

The Seventh Circuits construction of 912 makesfar greater sense than the Ninth Circuits inAvistaorthe district courts inS.C. Johnson: a literal readingof 912the terms of which are a garblemightsuggest that only after a court decree or act of Congress


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could the interest even be abandonedbut this is anonsensical construction.See id.at 806. Congress in1922 would have known that decrees of railwayabandonments were always made after the fact. Thiswould not have been considered an impermissibleretroactive declaration, but rather the way our courtshave always adjudicated and resolved disputes overrailway abandonments.

The contrary construction argued by the UnitedStatesthat 912 mandated prospective decrees beforeinterests could even be abandoned, let alone vest inlandowners(1) would result in tens of thousands ofmiles of rights of way not being abandoned and(2) would have required landowners along those tens ofthousands of miles to flood the courts seeking judicialdecrees in order to give effect to 912. When examinedthrough the lens of practical reality, the governmentsconstruction is nonsensical.

CONCLUSION

In Great Northern, at the urging of the United

States, this Court fully endorsed the DOI practice oftransferring fee title in a patent to the landownerwithout reserving any interest in the tracts comprisingthe 1875 Act grants. This Court so found because the1875 Act granted merely easements. As a result of theDOIs policy, generations of land patents have issuedwithout the reservation the United States now claims.No matter how compelling modern-day policiesfavoring the preservation of rights of way may be, areversal of Great Northern would upend decades of

justified reliance on established principles of land

ownership for over a million acres of land. The TenthCircuits decision should be reversed.


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Respectfully submitted,CECILIA FEX

Counsel of RecordMICHAELAMBERG

ACKERSON KAUFFMAN FEX,PC1701 K Street, NW, Suite 1050Washington, DC 20006(202) [email protected]@ackersonlaw.com

Counsel for Amicus CuriaeNational Association ofReversionary Property Owners

brief for the national association of reversionary property owners as amicus curiae in support of...

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